CRI/T/154/01
IN
THE HIGH COURT OF LESOTHO
In the matter between:
REX
V

PALO MOKEBE

JUDGMENT

DELIVERED BY THE HONOURABLE
MRS JUSTICE K.J. GUNI
ON THE 5^TH APRIL, 2005

Identity of the accused
………………… where there is no evidence establishing the
identity
of the perpetrator – the accused is entitled to a
discharge.

1. CHARGE

The accused is charged with the
crime or murder. It is alleged that
on the 1^st day of
January, 1990 at the plateaux of QEME, in the
district of MASERU,
the accused did unlawfully and intentionally kill
one THABO ADORO
by shooting him with a gun. The accused denies
this charge.

2. FACTS.
Most of
the facts in this case are in the common cause. On the date
in
question the accused together with a group of other men, in
the
administrative jurisdiction area of MATSIENG, were detailed to
take
care of the reserved grazing area, on the plateaux of QEME.
There
were animals grazing thereat without authority. The accused
and his
colleagues, amongst them PW1, 3 AND 4 went to round up
those
trespassing animals for the purpose of empounding them.
Evidence
before this court shows that there were many cattle in
several small
groups – scattered all over the plateaux. The
accused and his
colleagues were the guardians of this reserved
pastures. Once the
herd boys had the sight of these men, they
started to drive their
cattle away. The guardians of the said
reserved pasture tried to
round up those cattle for the purpose of
empounding the same.
They met resistance from the herd-boys who
threw stones at these
men while others were driving the cattle
away in order to thwart the
intended seizure.

This accused was in the company of at least six men at
the time
when the fight broke out between the herd-boys and the
guardians
of the reserved pasture on top of that QEME plateaux on
that New
year’s day. All the six men were riding on horse backs.
Three of
these six horses – including that of the accused person
– climbed up
quickly and reached the top of the plateaux first
while the other

three horses came up
leasurely behind them.
According to the evidence of one RAOHANG
NKHABU – [hereafter
referred to as RAOHANG] he was instructed to
go back and ask
those of his colleagues who were taking their time
to climb that
mountain to hurry up because there were many cattle
scatted all
over the plateuax and the herd-boys were driving them
away to
prevent their seizure. RAOHANG obliged. On his way back,
after
calling his colleagues to hurry up he rejoined the first
group which
was already engaged in the rounding up of those
trespassing cattle.
He then noticed that there was someone who had
fallen on an
anthill. He continued the business of rounding up the
cattle. When
they had succeeded to capture and seize some of those
cattle
RAOHANG came back to the scene where there was this fallen
men
on the anthill. According to him this man was already dead.

When all the men had gathered around that deadman, a
general
question was addressed to them all thus:- “who shot this
man?” No
one replied. After a while Pw3 – RAOHANG replied,
that when he
came up after he had called those of his colleagues
who were
climbing slowly behind them to hurry up, he found that
man already
lying there in that same fashion. After giving that
response
RAOHANG left the scene of the crime. According to PW1 –
TSELISO
SEOEHLA – he saw a passerby – perhaps one of the herd
boys. One
NKHABU asked him what had happened to this dead man.
That
passerby said he was shot by a man – riding on a white
horse.

This stranger –
passerby is not only unknown he also has not
recorded any
statement to the police nor called to testify before this
court.
It seems there was an inquiry conducted by one SAMUEL
NKHABU,
there at the scene of crime immediately after the dead
man was
discovered. This inquiry was held in order to determine
who killed
the deceased.

According to the evidence of TSEBANG BOOSMAN the reply
to the
general question of “who killed the deceased” was “we
don’t know”.
This stranger passing by who said the man was
shot by a man riding
a white horse did not point out or indicate
the said white horse.
There was no one riding a white horse on
that plateaux at that time.
The accused was present. He was riding
a roan horse. It is
described as the colour likely to be mistaken
for white at the
distance. He or his horse were not pointed out at
that time. None
of those who could be relied upon to substantiate
the story of a man
on a white horse agreed to come forward before
the chief. Nobody
had seen the actual shooting of the deceased.
The suggestion made
was that the white horse was seen coming from
the direction where
the body of the deceased was found. Nobody
ever heard a gun
report at any time when those people were up that
mountain.
Nobody heard the echoe of such a gun report. The
presumption
would be that the gun silencer was used if the
deceased was shot at
that time when the herd boys and the pasture
guardians were
engaged in a struggle to take possession of the
animals on the

plateaux.

There is yet another possibility that by the time the
pasture
guardians climbed that mountain this man had already been
shot and
had already fallen on that ant hill.

5. WEAPONS
Weapons in the possession of the accused
and his colleagues were
according to the evidence only horse
whips. There is no evidence
that anyone of them was armed with a
gun. The gun was handed to
the ex-warrant officer KAKA by one man
whom he did not know at
the time the police were at chief’s
kraal on the date in question.
This ex-warrant officer together
with the colleagues had searched
the place where they found the
body of the deceased and had found
nothing which could help them
in their further investigations. May
be while at the chief’s
place that same unknown man handed to the
police the two of rounds
ammunition which were produced before
this court together with the
gun by ex-warrant officer KAKA. There
were two more rounds of
ammunition which the ex-warrant officer
KAKA did not know anything
about, but those two rounds were
together with the exhibits
recognized and identified by him as those
he received from the
unknown man at the chief’s place on the 1^st of
January
1990. There is no evidence as to who is the owner of this
gun.
There is also no evidence regarding the identity of the person
who
possessed that gun on that day. In whose possession was this
gun
at the time the deceased was shot?

EVIDENCE OF BALLISITIC
EXPERT

A Lieutenant in the Lesotho Mounted Police Service of
the Kingdom
of Lesotho, employed as a firearms examiner, attached
to Forensic
Ballistic Technical Service Department,
microscopically examined the
fired bullet cartridge case and the
dead bullet. He also fired
cartridges found in the special
revolver serial number WO 37230.
The revolver was found to be in
good working order. The tests
carried out by the expert
established that the cartridge case
submitted for examination had
been fired from the gun Exhibit 1
which had been handed, to
ex-warrant officer KAKA who produced it
before this court. The
dead bullet which we do not know how and
when it came into the
possession of Detective Trooper RAMMOLE
who passed it on to the
ballistic expert, was examined too and
tested. But the expert was
not able to determine from where and
when it fired.

This court therefore cannot, with the evidence before
it, determine
where that bullet was fired from? [i.e. say from
which gun?] By
whom it was fired? When it was fired? The evidence
that could
provide answers to these questions should have been led
by the
crown. None was led. The ownership and/or the possession of
the
gun at the time of the alleged offence are not known. Crown
led no
evidence to establish both or either ownership and
possession of that
gun at the material time.

MEDICAL EVIDENCE

It is conclusive that the deceased died as a result of intra
cerebral
contusion and haemorrhage secondary to gun shot. Evidence
of ex-
warrant officer KAKA who attended the scene of the crime on
the 1^st
January, 1990, shows that he observed the
bullet wounds on the
head of the deceased person. The entry of the
bullet wound was
above the left ear whilst the bullet exit wound
was above the right
ear. The doctor who carried out the
post-mortem examination found
a neat entry wound on the left
temporal region. There is no exit
wound according to the doctor’s
findings. The bullet was sub
coetaneous mid frontal region. To
some degree the doctor’s evidence
corroborates that of the
ex-warrant officer KAKA.

IDENTITY OF THE ACCUSED
There is no evidence
establishing the identity of the accused. It is
not known who shot
the deceased. there is no evidence pointing
directly or indirectly
to anyone. Why should anyone be put to his
defence in those
circumstances?

APPLICATION IN TERMS OF SECTION 175 C P AND E ACT.

NO.9 OF 1981.

The attorney for the accused MR. MAIEANE made the
application for
the discharge of the accused at the close of the
crown case. MR.
MAHAO for the crown opposed the granting of the
application for the
discharge of the accused at this stage. He
urges the court to
exercise its discretion against the granting of
this application on the
grounds that what is missing in the
properly formed prima facie case
against the accused at
this stage, may be found and provided by the
accused himself when
he is put to his defence. Both parties agree
on the applicable law
that governs applications such as this one.
This is SUB SECTION
(3) OF SECTION 175 CRIMINAL LAW AND
PROCEDURE ACT – NO. 9 OF
1981. The relevant portion thereof
reads as follows :-
“ If
at the close of case for prosecution,
the court considers that
there is no
evidence that the accused committed the
offence
charged or any other offence of
which he might be convicted, the
court
may return the verdict of not guilty”. [My
underlining]

When considering an application of this nature the court
is required
to ask itself a number of questions. The first
question must relate to
the evidence creating an offence charged
or any other offence of
which this court may competently convict
the accused.
That the crime of murder has been committed, is
obviously an

established case. The
crime of murder is the unlawful and
intentional killing of a human
being. Who is to be convicted of this
murder? definitely it must
be the perpetrator. This is where our
problem lies. The fact that
the crime has been committed is not by
itself enough to put the
accused who has not been implicated in any
way to his defence.

Mr. MAIEANE and Mr. MAHAO are in a total agreement as
regards
the test to be applied while considering the application
for discharge
at the close of the crown case. That test rests on
this question,
“whether or not there is evidence upon which a
reasonable man
acting carefully might convict. Both parties
underlined the “might”.
Which lays emphasis only on the
possibility. They relied on the
authority of REX V HERDHORDT AND 3
OTHERS 1956 (2) SA 722 AT
725. In our present case we must ask a
further question. That is
the question regarding the identity of
the perpetrator. The evidence
before this court as has been
pointed out implicate nobody. True
there is an accused person in
the dock. By virtue of his presence
therein, the court is not
obliged to call him to his defence. There is
no evidence pointing
a finger at him. The supposition that to some
people who look at
the roan horse at some distance it could be
mistaken for a white
horse is not evidence.

There is no burden on the accused to proof his innocence
or even to

say anything. The
deceased was killed by shooting with a gun.
There is no evidence
that this accused had a gun or that his gun was
used in that
shooting. He is therefore entitled to a discharge. THE
VERDICT IS
THAT HE IS FOUND NOT GUILTY.

The two assessors agree with me on the fact findings
made in this
case.

K. J. Guni
JUDGE

Assessors : Mr. Makhera
Mr. Sesioana

For Crown : Mr. Mahao

For Defence : Mr. Maieane